Supreme Court sends warning note to Charles

“Despite the rejection, the Guardians suspicions were confirmed, with the Prince writing to no less than 7 governmental departments.”

After an arduous 10 year legal battle, the Supreme Court have cleared the way for the release of a series of secret letters written by the heir to the British throne, Prince Charles. This case has become known as the Black Spiders Memo case, mainly due to the long drawn out black handwriting of Prince Charles. The case itself may have limited impact regarding the content of the letters, however what cannot be underestimated is its constitutional significance on a number of limbs.

Prince Charles, as a character, is known for his love of writing letters, in particular he is known to write to ministers to express his views. Over a decade ago, The Guardian requested copies of these letters using the newly implemented Freedom of Information Act 2000. At this time The Guardian had no knowledge as to whether Charles had written to ministers at all. The request itself was directly rejected by the information commissioner on the basis that the Prince was protected by a constitutional convention. It was argued that protecting the letters was essential to the Prince’s ‘education’ to be Monarch. Despite the rejection, the Guardians suspicions were confirmed, with the Prince writing to no less than 7 governmental departments.

This itself sparked an appeal by The Guardian to a Freedom of Information Tribunal. At this point the government changed its tune and argued that the Prince had the right to correspond with the ministers, and that it was vital to keep these letters and correspondences confidential. The tribunal eventually reached a unanimous decision, siding with the Guardian, ordering for the release of the letters. The case then took an even more suspicious turn, when instead of launching a legal appeal issued a veto by Dominic Grieve, the Attorney General at the time. Despite being a lawyer himself, he issued the veto on the grounds that it would seriously undermine the prince’s ability to perform his duties.

The Guardian then initiated another legal appeal, on the grounds that the Attorney General, a politician, was not legally entitled to veto a decision of the judiciary. This was the question the Supreme Court has had to consider for the past 4 months.

In a widely expected decision, Lord Neuberger for the majority confirmed the decision of the Freedom of Information Tribunal and ruled that Dominic Grieve had acted illegally in contrary with the rule of law and the separation of powers. Leading a 5-2 majority in the Supreme Court, Neuberger argued the Grieve’s was not entitled to issue a veto simply because he disagreed with a decision of the court, without providing any form of acceptable explanation. He further reiterated that there was also no legal basis for making a veto on this basis.

“Lord Wilson argued that the decision would undermine another fundamental constitutional principle, the idea of parliamentary sovereignty.”

In essence Lord Neuberger and the majority here were seen to uphold a constitutional principle of the UK of the separation of powers. This age old doctrine states that politics and the judiciary should be seen to be completely separate, to ensure no influence can be held over one another. The importance of this doctrine is seen with the move for Britain’s highest court being moved from the House of Lords to the Supreme Court via the Constitutional Reform Act 2005.

This judgement further reiterates the idea that the decision of a judicial court should always be final, and should not be capable of being overturned by a member of the executive. Although the judgement appears to be coherent and logical, it is worthy to note that there were 2 dissenters to the decision. Lord Wilson argued that the decision would undermine another fundamental constitutional principle, the idea of parliamentary sovereignty. Grieve had argued that he had made his veto utilising section 53 of the Freedom of Information Act 2000, which appeared to allow a minister to veto a decision on the basis of ‘reasonable grounds.’

It seems strange that the Government did not choose to appeal the decision on the traditional grounds, and this argument was acknowledged by Neuberger in his judgement. Neuberger got around this section of the act, arguing that there are limitations on the concept of ‘reasonable grounds,’ drawing from the Common Law and EU Law in reaching this decision. On the face of it, the manner of getting around the Section in the act seems a little superficial, with Wilson anchoring his dissent on the grounds that the Court were attempting to rewrite Section 53 itself by upholding the original decision of the Tribunal. It is however difficult to argue with Neuberger’s and the majority’s ultimate conclusion, on the grounds of maintaining the separation of powers.

On a different note, the decision from the Supreme Court arguably sends out a number of warning notes. It is nearly five years since the Supreme Court was fully established, and this case is arguably a defining point in its history. The judgement itself seems to be the court finally finding its feet, and stamping them down marking their ground. It also more importantly provides a clear precedent for Prince Charles to abide to, perhaps following in the vein of Queen Elizabeth. That warning being that any attempt to meddle in Parliamentary or judicial affairs by the Crown will not be tolerated.

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